Pagan v. Commissioner of Stamp Duties (Qld.)

Judges:
Andrews SPJ
Macrossan J

Court:
Supreme Court of Queensland (Full Court)

Judgment date: Judgment handed down 27 May 1983.

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Andrews S.P.J. (Macrossan J. concurring)

This is an appeal by way of case stated from an assessment of stamp duty on a document or instrument as a bill of exchange ``Payable on demand or at sight, or on presentation, or in which no time for payment is expressed'' (Sch. I to the Stamp Act 1894-1979, headed ``Stamp Duties on Instruments'').

Stamp duty payable on such a bill of exchange is 10 cents. For the purposes of the Stamp Act the expression ``Bill of Exchange'' includes draft, order, cheque, and letter of credit, and any document or writing (except a bank note) entitling or purporting to entitle any person, whether named therein or not, to payment by any other person of any sum of money; and the expression ``Bill of Exchange payable on demand'' includes, inter alia:

``An order for the payment of any sum of money weekly, monthly, or at any other stated periods, and also an order for the payment by any person at any time after the date thereof of any sum of money, and sent or delivered by the person making the same to the person by whom the payment is to be made, and not to the person to whom the payment is to be made, or to any person on his behalf''

(see sec. 36 of the Stamp Act).

It was common ground that the document with which we are concerned is a bill of exchange payable on demand for the purposes of the Stamp Act (see
Committee of London Clearing Bankers v. I.R. Commrs. (1896) 1 Q.B. 542).

It seems to be accepted that ``entitling or purporting to entitle any person'' to payment does not amount to giving such a person a right to compel payment. Some discussion was had as to whether the document was an order for payment ``at any time after the date thereof'' as it does not specify a date for payment, but I would hold that the wording of sec. 36(b) which is in quotation above would include such an order. The said para. (b) clearly enough relates first to orders for periodic payments and then orders for payment at any other time or times which need not be specified but which may be. Where no time is stipulated a reasonable interpretation would be for payment forthwith.

It is stated in the case that:

``1. GEORGE EDWARD PAGAN is the signatory to an instrument bearing date the Twenty-third day of January, 1981 headed `Withdrawal form' requiring E.S.L.A. Credit Union Ltd., a society registered in the State of Queensland as a Credit Union pursuant to the `Co-operative and Other Societies Act 1967-1978', to pay by cheque from his Savings Account No. 5000-2099-S2 with the said Society the sum of Three Hundred and Forty-one dollars and Fifty-six cents ($341.56) as follows: -

                                         $
      Scurr Bros. Pty. Ltd.           169.95
      American Express                120.83
      C.A. & P.J. Adams                50.78
                                     --------
                                     $341.56
                                     --------
              

A true copy of the said instrument is annexure `A' hereto and forms part of this case.

2. On or about the Fifth day of June, 1981 the COMMISSIONER OF STAMP DUTIES assessed the duty payable under the said Act on the said instrument in the sum of Thirty cents ($0.30). A true copy of the Commissioner's said assessment is annexure `B' hereto and forms part of this case.''

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ATC 4322

The annexure ``A'' is worded:

``Please pay cheque (details as over) from my savings account no. S2

The sum of Three hundred and forty-one dollars 56 [$341-56]

Member's name G.E. PAGAN

BLOCK LETTERS

MEMBER'S SIGNATURE G.E. Pagan''

On the reverse side of the document are three columns headed with details set out as follows:

      Name & address of payee       Amount Payable       Office Use Only
       (with postcode)
  Scurr Bros. Pty. Ltd.                169.95
  American Express                     120.83
  C.A. & P.J. Adams                     50.78
                                       341.56
          

The Commissioner of Stamp Duties assessed stamp duty on the document at 30 cents as being 10 cents for each of three separate orders to pay, relying upon the provisions of sec. 15(a) of the Stamp Act, viz.:

``Except where express provision to the contrary is made by this or any other Act -

• (a) An instrument containing or relating to several distinct matters is to be separately and distinctly charged as if it were a separate instrument, with duty in respect of each of the matters.''

Questions for the decision of the Court are:

• (a) Is the said instrument chargeable with duty in accordance with the assessment of the Commissioner of Stamp Duties?
• (b) If ``no'' to (a), with what amount of duty is the said instrument chargeable?
• (c) How should the costs of and incidental to the stating of this case and of the appeal thereon be borne and paid?

Argument for the appellant which was widely stated is to the effect that the principal object or principal purpose test should be applied to what I shall call the withdrawal form, and that the principal object or purpose is the withdrawal of a sum of money, namely $341.56, and that the directions as to payment by way of three cheques to the payees mentioned are ancillary to, and severally connected with, a loan contract between the credit union and the appellant, and underlying the agreement so as to render the instrument as a whole liable only to 10 cents duty. The appellant relied on sec. 32(c) of the Acts Interpretation Act 1954-1977 in support of submissions in this behalf. Inter alia, sec. 32 provides:

``In every Act unless the contrary intention appears -

• ...
• (c) Number. Every word in the singular number shall be construed as including the plural number, and every word in the plural number shall be construed as including the singular number;.''

It was contended that this latter provision compelled an interpretation of sec. 36 of the Stamp Act which would exclude from consideration sec. 15(a) of the Stamp Act (supra); that in effect the definition of bill of exchange was a comprehensive definition to the exclusion of sec. 15(a) and that a reference to any person in sec. 36 was a reference to the plural, ``persons''. I think that that is a fair synopsis of the appellant's argument in that regard. I think that a corollary to the argument is that the instrument under consideration, being a withdrawal form, comes within the purview of sec. 32 of the Acts Interpretation Act being a direction to the credit union to pay a sum of money to specified payees in respect of particular amounts. It was further argued that sec. 15 of the Stamp Act in any event

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ATC 4323

would not apply to the withdrawal form because there were not separate and distinct transactions within the document which, on its proper construction, is one instrument effecting one transaction. We were led by senior counsel for the appellant to a number of authorities which I thought were of little assistance. To be fair, he did point out that it is difficult to apply statements in the cases to the circumstances here, because of the wide variety of circumstances and the difficulty in finding parallels in the facts of other cases.

It was I think conceded that had there been separate orders for withdrawal and payment in the withdrawal form, each such order would separately attract stamp duty. In my view, it is difficult to accede to these submissions for the appellant, having regard to the direction in the withdrawal form to pay by cheque. The only practical means of complying with such a direction is by the drawing of the separate cheques for the respective amounts requested to be paid to the payees named. In my view sec. 32 of the Acts Interpretation Act does not lead to the restricted interpretation of sec. 36 of the Stamp Act contended for by the appellant. Senior counsel for the respondent Commissioner submitted that it was of little assistance to go to the authorities in order to interpret sec. 36 and 15 of the Stamp Act as the meaning was quite plain.

In my view the proper approach to interpretation of the document and of the applicability of sec. 15(a) of the Stamp Act lies outside any search for a principal or leading object. The payment to each of three separate creditors of different amounts by separate cheques forms the subject matter of separate or distinct orders, and for that very reason each is distinct from the others. If one were inclined to consider whether the instrument has a principal or leading object, in my view it could not be found simply in a direction to withdraw money. In my view there is no purpose whatever to the withdrawal without the disposition of the money by the three separate payments ordered by the appellant, and if it is relevant to look for a principal leading object, in my view it would be found in the directions to make the payments referred to.

It was interesting to refer to Alpe, Law of Stamp Duties 12th ed. published in 1911 and to the 23rd edition of the same work published in 1941 and also to Gallagher, Highmore's Stamp Laws 4th ed. 1921, all of which indicate that it has long been the unchallenged practice of the Board of Inland Revenue in England to levy duty on instruments such as the one under consideration in the manner for which the respondent Commissioner primarily contends here.

In
Bambro (No. 2) Pty. Ltd. v. Commr. of Stamp Duties (N.S.W.) (1963) 63 S.R. (N.S.W.) 522 at p. 527 Sugerman J. said:

``Certain general considerations affecting the decision of the present case should be adverted to. Stamp duty is imposed upon instruments and not upon transactions. But in the classification of instruments for the purpose of determining whether they are dutiable or not, and, if dutiable, under what head they fall and whether the duty is ad valorem or fixed and what is its amount, all these questions are dependent upon the characters of the transactions which instruments embody, referred to in the Act as `matters'. A single instrument, `containing or relating to several distinct matters is to be separately and distinctly charged with duty in respect of each of such matters, as if each matter were expressed in a separate instrument'. (Stamp Duties Act, sec. 17(1).) I see no reason for concluding that `matters' may not be `distinct' in the sense now under consideration even though in a contractual sense, and in terms of the instrument which embodies them, they are integrated and interlocked as parts of a single larger transaction or bargain or agreement. Matters contained in the same instrument are distinct for the purposes of sec. 17(1) when it is necessary to regard them separately in order to assess the same amount of duty as would have been assessable if each had been expressed in a separate instrument, more particularly when each falls within a different classification created by the Act for the purpose of specifying the nature (fixed or ad valorem) and amount or rate of the duty payable.''

I find the above statement more helpful in coming to a conclusion in this matter than any other of the authorities to which

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ATC 4324

reference was made. I should point out that sec. 17 of the Stamp Duties Act (N.S.W.) is in terms similar to those of sec. 15 of the Stamp Act. I would answer the questions as follows:

• (a) Yes.
• (b) Not applicable.
• (c) The costs of and incidental to the stating of this case and of the appeal thereon of the Commissioner of Stamp Duties should be taxed and paid by the appellant George Edward Pagan.